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Alternative Dispute Resolution

Collaborative Divorce vs. Mediation

Sunday, March 15th, 2015

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Mediation

As discussed in greater detail in our article discussing mediation in Georgia divorce, mediation is an alternative to trial where a neutral third party, known as a mediator, facilitates settlement between the parties by focusing the parties’ attention on their relative needs and interests instead of their conflicting positions. Mediator’s do not have the authority to force the parties into settlement or make any decisions, but may only guide the parties in reaching a mutually agreeable settlement.

Collaborative Divorce

The collaborative divorce process is a relatively new approach to resolving divorce issues. Like mediation, the goal of collaborative divorce is for the parties to reach an agreement or settlement without court intervention. If parties to a divorce decide to engage in the collaborative divorce process, both parties, along with their respective attorneys, agree to work together to craft a mutually agreeable solution to all fours issues presented during divorce. Collaborative divorce is based on a team effort, where the parties and attorneys, along with other divorce related professionals, such as accountants and therapists, work together to determine what outcome would best serve the best interest of the entire family.

Although both mediation and collaborative divorce have the same ultimate goal, allowing the parties the freedom to craft the solution best suited for their situation without the intervention of the court, there are differences in these two approaches to divorce. First, mediation involves the presence of a third party mediator who directs negotiation between the parties, or their attorneys. Collaborative divorce on the other hand, there are generally only four people involved in each meeting, both parties and their attorneys. During collaborative divorce, the parties engage with each other, not through a mediator, to resolve their issues. Second, collaborative divorce involves an agreement between the parties and their attorneys, where all involved agree to seek a resolution without the intervention of the court, and before initiating the formal divorce process. If the parties are unable to reach an agreement, the attorneys involved in the collaborative process agree not to represent the parties during any subsequent divorce litigation. On the other hand, mediation does not require such an agreement. Finally, unlike collaborative divorce, parties may engage in mediation either prior to or during the formal divorce process. However, the collaborative divorce process requires the parties to come to a final agreement before initiating the formal divorce process.

Choosing A Mediator

Sunday, February 1st, 2015

 

Mediation is often a successful option for resolving a divorce case without going through a trial. It is the preferred settlement method for many divorce attorneys because it allows the parties to determine their fate, rather than a Judge. You can see details about the mediation process HERE. Though the mediator has no decision-making authority over your case, he/she can often help guide the case to resolution. In spite of this, choosing the right mediator for your case may actually help the settlement process.

 There are several things to consider in choosing a mediator. First, research the mediator’s experience in your county and with your Judge. Experienced mediators have likely seen it all when it comes to divorce mediation. As such, they will know what a particular Judge is likely to do in certain situations. For example, consider a couple fighting over a child support deviation. The mediator may know that the Judge assigned to the case does not often deviate from amount calculated on the child support worksheets. The mediator could, in turn, tell the party requesting the deviation that he/she is unlikely to get it if the case goes to court, which could result in a quick settlement on that particular issue.

 Another thing to consider is the personality of your mediator. Some mediators are stronger than others, really pushing the parties to come to a resolution. Others are more passive, just taking offers back and forth like a middleman. In addition, there are extremely creative mediators who think outside the box to help the parties come up with solutions to resolve the case. Choosing a passive mediator when you need an aggressive one, or vice versa, can actually hinder the settlement of your case at mediation.

 On that same note, you also need to consider your personality and that of your spouse. Some people do not react well to a mediator really pushing them to compromise on certain issues and may become turned off on the idea of settlement. (These people are the ones who actually usually need the push!) Other people may not be open to the idea of working with one gender or the other. For example, if a wife has been cheated on by her husband, she may have trust issues with men and not feel comfortable opening up to a male mediator. For the same reasons that a person prefers a female or male doctor, many people feel more comfortable opening up to one gender over the other.

 All this being said, you and your spouse (through attorneys, if you have them) must jointly agree upon a mediator. You will likely benefit from trusting your attorney in his/her mediator selection as he/she has likely done hundreds of mediations. Your attorney knows you best and will do all that he/she can to get a mediator that has the best chance of fully settling the case at mediation.

Preparing for Your First Mediation Session – Six Sample Tips

Wednesday, January 15th, 2014

The court or your attorney has advised you that your case has been scheduled for mediation. Now what? Hopefully you have also been given some information regarding mediation generally and what to expect during your first mediation session. Even armed with this information, you still may be wondering: What should I do now? How can I prepare? What will happen?

Below we have laid out six simple tips for preparing for your first mediation session. If you are already represented by counsel, it is very likely that your attorney will work with you to prepare the necessary documents for mediation. If you are currently unrepresented though, you may find these tips especially helpful.

1. Come with relevant and organized financial documents. In Georgia, it is a requirement that both parties in domestic relations matters such as divorce, child custody or child support matters complete a Domestic Relations Financial Affidavit (DFRA), outlining all income and expenses, and submit it to the court as well as the opposing party. Not only should you ensure you bring a completed DRFA to mediation, but you should also bring any relevant financial documents to substantiate your DRFA as well. Such documents include: bank account, mutual fund, brokerage account, and retirement fund records; real estate documents, vehicle payment and registration information, marital business records, and stock information. Additionally, you should have the most recent balances of all bank accounts and retirement funds as well as the current balance and monthly payments on your mortgage and home equity loans, all credit cards and other loans, such as student loans or loans against retirement funds and car loans.
2. Try to maintain control of your emotions. Mediation is, above all, a negotiation process. Heated emotions are very common during mediations concerning divorce or other family law related issues. Although common, and understandable, failure to keep a reign on your emotions will not allow you to have the clear head you need during the negations and may actually become a hinderance in the process.
3. Be prepared to negotiate. Resist the urge to argue. With the above point in mind, come to mediation in the mindset to listen to the other parties point of view and respond with your own in an effort to reach a conclusion. Mediation is a forward looking process aimed at resolving the issues between the parties. The past is the past. It cannot be changed. Thus, using mediation to simply argue about or rehash the history would serve to be terribly unproductive. So the first question to ask yourself is: What do I want? Once you determine your ultimate goal, work together with your attorney and the mediator to try to accomplish what you are looking for.

4. Ensure you and your attorney have the same goal in mind. It is important to know what your rights are, and to get legal advice from your attorney if you are represented. But, if you feel that your attorney is steering you towards litigation or down a part that is more adversarial than what you are looking for, it is perfectly acceptable to seek alternative counsel. Before you take any major steps in your matter, ensure that you and your attorney are working together towards a common goal.
5. Come with a planned budget. Before you will be able to request a specific amount of support such as alimony, it is important to know exactly how much you actually need. This principal applies in the opposite situation as well. Negations will go much easier if both parties are aware of what they need and/or what they are able to pay. In order to accomplish this, constructing a realistic budget will be necessary. Base your budget on concrete expenses, and bring it to mediation with you. Your DRFA may service to be particularly useful in constructing such a budget, as it already requires each party to record monthly income and expenses.
6. Be aware of your rights and possible obligations. Finally, prior to your first mediation session, educate yourself as much as possible. Gather information. Read more articles and books. Request an additional meeting with you attorney if necessary. Above all, ensure that you are fully aware of all of the possibilities and options available to you, as well as the obligation that you may be required to fulfill upon the conclusion of your case.

How to Effectively Use Mediation to Settle with Your Atlanta Divorce – Part III

Monday, November 16th, 2009

In part three of our ten part series on how to effectively use mediation in your contested divorce case, we will continue to examine steps to take to make sure you and your Atlanta divorce lawyer are ready for mediation. This blog will also work if you and your spouse plan on using mediation to settle your case without an Atlanta Divorce lawyer. In this blog, we go into a little more detail on the preparation necessary for an effective mediation in a contested divorce case.

Budget Accuracy. As Atlanta divorce lawyers, we find that one of the greatest problems in mediation is “inflated” or “deflated” budgets, which have absolutely no relation to reality or historical spending levels. If budgets represent actual numbers and historical levels of expenditures, mediation has a much greater chance of success. You want to avoid paying your Atlanta divorce lawyer an hourly rate to “haggle” over the accuracy of budget numbers. If you have not been the one who has taken care of the finances during the divorce, make sure that you have requested the information from your spouse to obtain the documents necessary to prepare an accurate budget. If he won’t turn them over, your Atlanta divorce lawyer can seek this information through formal discovery.

Have extra copies of all documents. Do not go to mediation with only one copy of a document that you intend to rely upon. Have multiple copies so that everyone can look at the same documents, can make notes on them, and go over those documents in the initial caucus. If you plan on making the extra copies yourself, make sure you tell your Atlanta divorce lawyer ahead of time.

Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia: Guardian Ad Litem

Wednesday, February 25th, 2009

Our final blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia is in regards to the Fulton County’s Guardian Ad Litem program. A Guardian Ad Litem is an attorney who has had at least 20 hours of specialized training for child welfare and custody issues. In cases involving contested child custody, modifications of custody, modification of visitation, allegations of child neglect or child abuse, the Court can assign a Guardian Ad Litem to more closely evaluate the situation and report back to the court its findings. The Court or the Guardian Ad Litem can order psychological evaluations and drug testing if applicable to help in making a custody determination.

The cost of a Guardian Ad Litem can be rather high for most divorces in Georgia. Litigants should be aware that Fulton County offers a Guardian Ad Litem (GAL) at a reduced hourly rate.

Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia: Late Case Evaluation

Wednesday, February 18th, 2009

The topic of “Late Case Evaluations” is our next blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia. A late case evaluation, like the name implies, is an option usually offered “late” in the case, but prior to going to a final hearing. It is typically scheduled by the Judge at the 120 Day Status Conference, although in certain limited circumstances, it can be scheduled earlier in the case (and may be referred to as an “early case evaluation”).

A late case evaluation is similar in many respects to a mediation. In Fulton County, it generally last four hours (although the length of time can be extended by the parties at their own costs). A late case evaluation is usually run by an experienced attorney. This individual, while serving in the role as an attorney, also provides the parties his or her “evaluation” of their positions(both their strengths and weaknesses) and his or her opinions as to what the likely result will be if the parties elect to pursue a final trial of their case rather than come to an agreement about all issues outstanding in their matter.

Benefits of Mediation

Monday, January 12th, 2009

Mediation is one option for resolving a family law case. In mediation, the parties and their attorneys meet with a neutral, third party mediator to help them resolve the outstanding issues in their case. Our firm has been very successful in resolving cases through mediation and there are many benefits to the process.

At mediation, parties can get things through negotiation that they would not be able to get from a Judge at trial. A good example of this is the dependency exemption on tax returns. Under the IRS regulations, the custodial parent is entitled to the dependency exemption. Thus, a Judge cannot award this benefit to a non-custodial parent. Many times, however, a non-custodial parent will benefit more from the dependency exemption than the custodial parent and may even be able to have more expendable money to pay in child support if given the exemption. In that case, the custodial parent can use the dependency exemption as a bargaining tool and give it to the non-custodial parent in exchange for something else during the mediation process.

Parties are usually happier with the results at mediation as compared to trial because they have some control over the outcome. When you go into a courtroom, your case is in the hands of a Judge who will listen to evidence and make a ruling on the issues. Many times, this results in both parties being unhappy to some extent. At mediation, you exchange offers with the opposing party and come up with unique solutions that a Judge may not consider.

Alternative Dispute Resolution (ADR) in Georgia Divorce Cases: Mediation, Arbitration, and Late Case Evaluation

Saturday, December 1st, 2007

Alternative Dispute Resolution is a general phrase for providing parties to litigation an alternative way to resolve their disputes. Generally, parties that have disagreements in a Georgia divorce case go to a court seeking a judge or jury to determine who is ‘right’. A Georgia divorce case can be expensive and lengthy for the parties involved as parties file a complaint/answer,conduct extensive discovery (typically over a six month period), are heard on various motions, and ultimately have a final hearing regarding all of the issues involved in their case. When a Georgia divorce case ‘goes the distance’ under this system it is not atypical for the entire process to take in excess of one year and cost tens of thousands of dollars.

Alternative Dispute Resolution is an attempt to enable the parties to Georgia divorce cases to craft their own “alternative” solution to a trial court rendering a decision on their matters.Generally, there are three basic forms of alternative dispute resolution that are commonly used in conjunction with, and sometimes instead of, the trial court process: mediation, arbitration, and late case evaluation.

Mediation is a process wherein a third party neutral (a “mediator”) attempts to facilitate discussions between parties in order to help them best craft a solution to their disagreements. The mediator does not decide any issues in the case. Instead, the mediator listens to both parties, typically separately, and tries to guide negotiations to a win-win solution or a solution that both parties can ultimately accept. The parties maintain absolute control over this process and are free to reject any offers from the other party at any time. Because the parties are crafting their own solutions to their disputes, often the parties to this process find it a useful mechanism to resolving their disputes.

How to Effectively Use Mediation to Settle with Your Contested Canton, Georgia Divorce – Part V

Saturday, December 1st, 2007

In part five of our ten part series on how to effectively use mediation in your contested divorce case, we will continue to examine steps to take to make sure you and your Atlanta divorce lawyer are ready for mediation. This blog will also work if you and your spouse plan on using mediation to settle your case without an Atlanta Divorce lawyer. In this blog, we go into how to handle yourself at mediation and what usually goes on at mediation.

Mediations typically start with an opening statement by either side. Most of the time, you should have your Atlanta divorce lawyer make the statement to keep it factually accurate and non-inflammatory. It does not do any good to increase the tension at the beginning of mediation. Avoid an opening statement full of vile accusations, conduct issues, and inaccuracies. This has no effect other than to sabotage mediation; when the whole purpose of mediation is to avoid that type of conflict.

After the parties have given opening statements, the mediators tend to meet privately with the parties in what is called a caucus. In the caucus session, the more inflammatory facts can be made known to the mediator; and can be communicated to your spouse in a much more pleasant and less hostile manner by the mediator – rather than the opposing side.

How to Effectively Use Mediation to Settle your Atlanta Divorce – Part I

Monday, October 1st, 2007

In part one of our ten part series on how to effectively use mediation, we will examine steps to take to make sure you and your Atlanta divorce lawyer are ready for mediation. This blog will also work if you and your spouse plan on using mediation to settle your case without an Atlanta Divorce lawyer. The first item that we will cover is BEING PREPARED.

Assets & Liabilities – It is essential that both you and your Atlanta divorce lawyer have a clear understanding of exactly what is in the marital state, a complete list of all of the assets and liabilities, current account balances, and current business evaluations, if applicable. Many Atlanta divorce lawyers like to use a “marital balance sheet,” or “MBS.” This is a sheet (usually prepared in Microsoft Excel) that contains the assets and liabilities of the marriage. It is most helpful when you have documentation to support the numbers on the MBS. Then, if called upon, you can then prove any of the figures.

When you and your spouse do not have a clear picture of your assets and liabilities, respective incomes, needs, and what the custody issues are, mediation and negotiating will be wasted and bad feelings will be fostered because you and your spouse will not be talking about the same thing and you may end up arguing over issues which are really non-issues. Moreover, if you are paying the mediator and your Atlanta divorce lawyer by the hour, it is in your best financial interests to stay focused on mediating the core of your case, not peripheral issues.

Child & Spousal Support – You and your spouse should prepare an accurate budget, normally in the form of a Domestic Relations Financial Affidavit that sets out your basic needs. You should exchange all documents, such as bank and other account statements, pay stubs, tax returns, insurance plans, pension information, etc., that provide a complete picture of you and your spouse’s financial situation. This is relatively simple if you and your spouse are W-2 wage earners and own a house and a simple retirement plan.

It can be more difficult if there is significant separate property involved, complex compensation issues (e.g. stock options), or other complicated financial situations. Obviously, if you and your spouse have filed a financial statement recently in which you have signed under oath that all assets and liabilities have been disclosed on the statement, that document should be provided to both of you. If you have a more complicated estate, an Atlanta divorce lawyer can be invaluable, especially since more complicated marital estates are often laden with tax complications.

Providing the other side with this information before meeting can save time, especially if the Atlanta divorce lawyers can agree on the MBS ahead of time. Once the Atlanta divorce lawyers have the same information and can agree on such issues as income, the property at issue, and you and your spouse’s net worth, the chances of a successful settlement negotiation are tremendously heightened.